TaxTMI 
TaxTMI 
2014 (9) TMI 1146
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....nal Code when the act of an accused is an offence both under the Indian Penal Code (in short, 'Indian Penal Code') and under the provisions of Mines and Minerals (Development and Regulation) Act. 2. Criminal Appeal No. 499 of 2011 arose out of an order passed by the Delhi High Court on an application Under Section 482 Code of Criminal Procedure seeking quashing of the FIR registered at Police Station Alipur Under Sections 379/114/120B/34 Indian Penal Code on the allegation that Appellant was involved in illegal mining of sand from the Yamuna basin. An FIR was registered by the police suo motu having come to know that some persons were removing and selling sand from the Yamuna basin for the last so many days. On receipt of such information, the police officers committed raid and visited the site where they found one dumper filled with sand. Because of non-production of any documents and valid papers, the digging equipments were seized and taken into possession and persons were arrested. An FIR was registered on the charges of illegal mining Under Section 379/114 Indian Penal Code besides being cognizable offence Under Section 21(4) of the Mines and Mineral (Development an....
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....on: (1) Whether the police could have registered an FIR in the case; (2) Whether a cognizance can be taken by the concerned Magistrate on the basis of police report; and (3) Whether a case of theft was made out for permitting registration of an FIR Under Section 379/411 of the Indian Penal Code. The High Court after referring various provisions on the MMDR Act vis-à-vis Code of Criminal Procedure disposed of the application directing the Respondent to amend the FIR, which was registered, by converting the offence mentioned therein Under Section 379/411/120B/34 of Indian Penal Code to Section 21 of the MMDR Act. The High Court in para 18 of the impugned order held as under: 18. In view of the aforesaid and taking into consideration the provisions contained Under Section 21(6) of the said Act I hold that: (i) The offence under the said Act being cognizable offence, the Police could have registered an FIR in this case; (ii) However, so far as taking cognizance of offence under the said Act is concerned, it can be taken by the Magistrate only on the basis of a complaint filed by an authorized officer, which may be filed al....
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....ting before the Magistrate relying upon the investigating carried out by the police and the complaint may also include the papers of the police investigation. 3. With respect to offences punishable under the Indian Penal Code, no such bar as indicated in para (2) would apply. xxx 22. In so far as the petitions where only FIRs have been registered by the police and no charge sheet is filed, they must fail. In so far as the cases where police investigation has been concluded and charge sheets have been filed, it would not be open for the Magistrate concerned to take cognizance of offences only on such police reports. 11. In the case of Sengol, Charles and K. Kannan, etc. etc. v. State Rep. by Inspector of Police 2012 Cri. LJ 1705 : 2012 (2) CTC 369, a similar question also came for consideration before the Madras High Court where a batch of writ petitions were heard and disposed of. The allegation made against the writ Petitioner in the FIR was that they committed theft of sand from rivers and river-bed belonging to the Government, which act also constitutes violation of the provisions of MMDR Act. Accordingly, they were prosecuted for the offence punish....
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....tion and Development) Act, 1957 and Section 379 of the Indian Penal Code. Cognizance can be taken Under Section 190 of the Code of Criminal Procedure, 1973. Cognizance is one and it cannot be divided. Splitting of cognizance is not permissible under the law. This is the admitted position that the complainant who lodged the complaint is not an authorized person to make such complaint. So taking cognizance on the basis of the complaint by the learned Magistrate for violation of the provision Under Section 21(2) of the Mines and Minerals (Regulation and Development) Act, 1957 is bad. The only question that is left open is whether taking cognizance itself is bad or a partial cognizance can be taken? In the peculiarity of the facts and circumstances of the case if the offence as alleged Under Section 379 Indian Penal Code against the accused is dissociated from the allegation of excavation of earth without license constituting an offence Under Section 21(2) of the Mines and Minerals (Regulation and Development) Act, 1957, then there is no ingredient for an offence Under Section 379 Indian Penal Code against the accused. Even if it is assumed that there is such an ingredient then the ord....
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....wer to seize, the power to compound, the requirement of taking directions from the jurisdictional magistrate are examples of some things which the police cannot do in view of direct contrary to the provisions in the 1957 Act. Learned Counsel submitted that this power of the police is equivalent to the same power/duty which arises pursuant to an order of the Magistrate Under Section 156[3]. There would definitely be cases where offences punishable Under Section 20 were brought to the notice of persons who were neither authorized person under the Act nor the police. Therefore in such a situation, if the police fails to act, the other option available to any person is to make an application Under Section 156 [3]. However, in this case, the learned Magistrate has no jurisdiction to pass an order under this provision in view of paragraph 11. Therefore, it will be a completely incongruous situation if the provisions of Sub-clause 6 of Section 21 are to be extended to Chapter 12 despite which several provisions in Chapter 12 cannot be invoked. 17. Learned Counsel further submitted that the provisions of Chapter 12 to 14 leading up to the magistrate taking cognizance of an offence are a....
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....Sub-section shall affect any prospecting or mining operations undertaken in any area in accordance with the terms and conditions of a prospecting licence or mining lease granted before the commencement of this Act which is in force at such commencement. Provided further that nothing in this Sub-section shall apply to any prospecting operations undertaken by the Geological Survey of India, the Indian Bureau of Mines, the Atomic Minerals Directorate for Exploration and Research of the Department of Atomic Energy of the Central Government, the Directorates of Mining and Geology of any State Government (by whatever name called), and the Mineral Exploration Corporation Limited, a Government Company within the meaning of Section 617 of the Companies Act, 1956. Provided also that nothing in this Sub-section shall apply to any mining lease (whether called mining lease, mining concession or by any other name) in force immediately before the commencement of this Act in the Union Territory of Goa, Daman and Diu. (1A) No person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and th....
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....icer or authority specially empowered in this behalf. (4A) Any mineral, tool, equipment, vehicle or any other thing seized Under Sub-section (4), shall be liable to be confiscated by an order of the court competent to take cognizance of the offence Under Sub-section (1) and shall be disposed of in accordance with the directions of such court. (5) Whenever any person raises, without any lawful authority, any mineral from any land, the State Government may recover from such person the mineral so raised, or, where such mineral has already been disposed of, the price thereof, and may also recover from such person, rent, royalty or tax, as the case may be, for the period during which the land was occupied by such person without any lawful authority. (6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence Under Sub-section (1) shall be cognizable. 20. Section 21 is a penalty provision in case of contravention of Section 4(1A) of the Act and is punishable with imprisonment for a term which may extend to two years. Sub-Section 3 of Section 21 would show that the State Government or any other authority authorized by the State ....
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....or thing and the provisions of Section 100 of the Code of Criminal Procedure, 1973 shall apply to every such search. 23. In exercise of powers conferred by Section 23(C)(1) of the MMDR Act, the Government of Gujarat made rules called Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005. The said Rules, inter alia, made provisions to search, seizure and confiscation of the property in the manner provided under the Act as and when a person violates the provisions of the Act and the Rules made thereunder in doing mining activities. 24. Looking into the provisions the Code of Criminal Procedure, 1973 the relevant provisions need to be referred hereunder. Section 2(c), 2(d) and 2(h) define cognizable offence, complaint and investigation which reads as under: 2(c) "cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant; 2(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some pe....
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....ence of the offence to disappear or tampering with such evidence in any manner; or (d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or (e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing. ... 26. Chapter 11 of the Code confers very important power and duty upon the police officer to take preventive action in certain cases. Sections 149, 150, 151 and 152 of the Code are worth to be referred to and quoted hereinbelow: 149. Police to prevent cognizable offences-Every police officer may interpose for the purpose of preventing, and shall, to the best of his ability, prevent, the commission of any cognizable offence. 150. Information of design to commit cognizable offences-Every police officer receiving information of a design to commit any cognizable offence shall communicate such information to the police officer to whom he is subordinate, and t....
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....m and downstream of the extraction site. This leads to coarsening of bed material and lateral channel instability. It can change the riverbed itself. The removal of more than 12 million tonnes of sand a year from the Vembanad Lake catchment in India has led to the lowering of the riverbed by 7 to 15 centimetres a year. Incision can also cause the alluvial aquifer to drain to a lower level, resulting in a loss of aquifer storage. It can also increase flood frequency and intensity by reducing flood Regulation capacity. However, lowering the water table is most threatening to water supply exacerbating drought occurrence and severity as tributaries of major rivers dry up when sand mining reaches certain thresholds. 31. Illegal sand mining also causes erosion. Damming and mining have reduced sediment delivery from rivers to many coastal areas, leading to accelerated beach erosion. 32. The report also dealt with the astonishing impact of sand mining on the economy. It states that the tourism may be affected through beach erosion. Fishing, both traditional and commercial--can be affected through destruction of benthic fauna. Agriculture could be affected through loss of agricultural....
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....ng to expert reports, for thousands of years, sand and gravel have been used in the construction of roads and buildings. Today, demand for sand and gravel continues to increase. Mining operators, instead of working in conjunction with cognizant resource agencies to ensure that sand mining is conducted in a responsible manner, are engaged in full-time profiteering. Excessive in-stream sand-and-gravel mining from river beds and like resources causes the degradation of rivers. In-stream mining lowers the stream bottom, which leads to bank erosion. Depletion of sand in the stream-bed and along coastal areas causes the deepening of rivers and estuaries and enlargement of river mouths and coastal inlets. It also leads to saline-water intrusion from the nearby sea. The effect of mining is compounded by the effect of sea level rise. Any volume of sand exported from stream-beds and coastal areas is a loss to the system. Excessive in-stream sand mining is a threat to bridges, river banks and nearby structures. Sand mining also affects the adjoining groundwater system and the uses that local people make of the river. Further, according to researches, in-stream sand mining results in the destr....
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.... the Constitution it has been provided that the ownership and control of the material resources of the community should be so distributed so as to best subserve the common good, but no comprehensive legislation has been enacted to generally define natural resources and a framework for their protection. of course, environment laws enacted by Parliament and State Legislatures deal with specific natural resources i.e. forest, air, water, coastal zones, etc. 37. In the case of M.C. Mehta v. Kamal Nath and Ors. (1997) 1 SCC 388, this Court while considering the doctrine of public trust which extend to natural resources observed as under: 24. The ancient Roman Empire developed a legal theory known as the "Doctrine of the Public Trust". It was founded on the ideas that certain common properties such as rivers, seashore, forests and the air were held by Government in trusteeship for the free and unimpeded use of the general public. Our contemporary concern about "the environment" bear a very close conceptual relationship to this legal doctrine. Under the Roman law these resources were either owned by no one (res nullious) or by every one in common (res communious). Under the En....
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....owing restrictions on governmental authority: Three types of restrictions on governmental authority are often thought to be imposed by the public trust: first, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third the property must be maintained for particular types of uses. xxx 34. Our legal system-based on English common law-includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the seashore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership. 38. In the case of Intellectuals Forum v. State of A.P. (2006) 3 SCC 549, this Court while balancing the conservation of natural resources vis-à-vis urban development observed as under: 67. The responsibility of th....
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....gation and consequent proceedings conducted and concluded by the police Under Section 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988 on the ground that the investigation had not been conducted by an authorized officer in terms of Section 17 of the Act. The Court held that the Act was intended to make effective provision for the prevention of bribery and corruption rampant amongst the public servants. It is a social legislation intended to curb illegal activities of the public servant and is designed to be liberally construed so as to advance its object. The Court observed: 9. The menace of corruption was found to have enormously increased by the First and Second World War conditions. Corruption, at the initial stages, was considered confined to the bureaucracy which had the opportunities to deal with a variety of State largesse in the form of contracts, licences and grants. Even after the war the opportunities for corruption continued as large amounts of government surplus stores were required to be disposed of by the public servants. As a consequence of the wars the shortage of various goods necessitated the imposition of controls and extensive schemes of po....
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....s not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either Under Clause (a) or (b) of Section 190(1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation Section 537 Code of Criminal Procedure which is in the following terms is attracted: Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, unless such error, omission or irregularity, has in fact occasioned a failure of justice.' if, therefore, cognizance is in fact taken, on a police report to investigation, there can be no doubt that the relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set ....
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....it is the duty of the court to mould or creatively interpret the legislation by liberally interpreting the statute. xxx 134. There are a series of decisions of various High Courts, of course with some exception, taking the view that a Magistrate before whom a person arrested by the competent authority under the FERA or Customs Act is produced, can authorise detention in exercise of his powers Under Section 167. Otherwise the mandatory direction under the provision of Section 35(2) of FERA or Section 104(2) of the Customs Act, to take every person arrested before the Magistrate without unnecessary delay when the arrestee was not released on bail Under Sub-section (3) of those special Acts, will become purposeless and meaningless and to say that the courts even in the event of refusal of bail have no choice but to set the person arrested at liberty by folding their hands as a helpless spectator in the face of what is termed as "legislative casus omissus" or legal flaw or lacuna, it will become utterly illogical and absurd. 42. In the case of Maqbool Hussain v. State of Bombay AIR 1953 SC 325 , the question that fell for consideration before the Constitution Bench....
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....ro eadem causa", that is, for the same cause. 44. In the case of State of Bombay v. S.L. Apte AIR 1961 SC 578, the question that fell for consideration was whether in view of an earlier conviction and sentence Under Section 409, Indian Penal Code, the subsequent prosecution for an offence Under Section 105 of the Insurance Act was barred by Section 26 of the General Clauses Act and Article 20(2) of the Constitution. Answering the question, the Constitution Bench of this Court observed: 14. To operate as a bar the second prosecution and the consequential punishment thereunder must be for "the same offence". The crucial requirement, therefore for attracting the Article is that the offences are the same, i.e., they should be identical. If, however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out. It would be seen from a comparison of Section 105 of the Insurance Act and....
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.... Section 5 of the Prevention of Corruption Act because the latter dealt with an offence of substantially the same type. This Court repelled that contention. It analysed the ingredients of the two offences and after pointing out the difference in the crucial elements which constituted the offences under the two provisions, held that there was no repeal of Section 409 of the Indian Penal Code implied by the constitution of a new offence under the terms of the Prevention of Corruption Act. It was the application of this decision and the ratio underlying it in the context of Article 20(2) of the Constitution that is of relevance to the present appeal. The occasion for this arose in State of Madhya Pradesh v. Veereshwar Rao Agnihotry [1957] S.C.R. 868 The Respondent was a tax-collector under a municipality and was prosecuted for offences among others Under Section 409 of the Indian Penal Code and Section 5(2) of the Prevention of Corruption Act for misappropriation of sums entrusted to him as such tax-collector. By virtue of the provision contained in Section 7 of the Criminal Law Amendment Act, XLVI of 1952, the case was transferred to a Special Judge who was appointed by the State Gov....
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....onsideration before this Court was whether the Appellant could be simultaneously prosecuted Under Section 177, Indian Penal Code and for violation of Section 52 of the Income Tax Act, 1922. Considering the provisions of Section 26 of the General Clauses Act, this Court held as under: 6. ....A plain reading of the section shows that there is no bar to the trial or conviction of the offender under both enactments but there is only a bar to the punishment of the offender twice for the same offence. In other words, the section provides that where an act or omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both the enactments but shall not be liable to be punished twice for the same offence. We accordingly reject the argument of the Appellant on this aspect, of the case. 7. It was then contended on behalf of the Appellant that the prosecution is illegal as complaint petition was required to be riled by the Inspecting Assistant Commissioner under the 1922 Act. In our opinion, there is no substance in this argument, Section 53 of the 1922 Act only requires that a person shall not be proceeded against for an ....
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....e Customs Act which requires the prosecution to establish altogether different ingredients operates as a bar to the prosecution of the same person in connection with the charge of having committed the offence under the Gold (Control) Act. 47. In the case of Leo Roy Frey v. Thomas Dana AIR 1958 SC 119, the question that arose for consideration before the Constitution Bench of this Court was as to whether conviction of a person for an offence Under Section 157(8)(c) of the Customs Act will bar a subsequent trial for conspiracy, this Court observed that: The proceedings before the Customs authorities were Under Section 167(8) of the Sea Customs Act. Under Section 186 of that Act, the award of any confiscation, penalty or increased rate of duty under that Act by an officer of Customs does not prevent the infliction of any punishment to which the person affected thereby is liable under any other law. The offences with which the Petitioners are now charged include an offence Under Section 120B, Indian Penal Code. Criminal conspiracy is an offence created and made punishable by the Indian Penal Code. It is not an offence under the Sea Customs Act. The offence of a conspiracy t....
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.... process was issued. It was at the same time that the Police registered a case Under Sections 447, 429 and 379, Indian Penal Code read with Sections 54 and 39 of the Wild Life (Protection) Act, 1972 and the matter was investigated by the Police. At this stage, one of the accused persons moved the High Court Under Section 482, Code of Criminal Procedure to quash the order of the Magistrate to take cognizance of the alleged offence. The High Court took the view that Section 210, Code of Criminal Procedure is attracted and that as an investigation by the Police was under progress in relation to the same offence, the learned Magistrate would be required to stay the proceedings on the complaint. The High Court further held that learned Magistrate acted without jurisdiction in taking cognizance of the offence. The matter ultimately came to this Court at the instance of State of Bihar. Holding that Section 210 was not attracted, Their Lordships held: 24. We are unable to accept the contention of Shri R.F. Nariman that the specific allegation in the present case concerns the specific act of killing of an elephant, and that such an offence, at all events, falls within the overlappi....
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....uble with this approach is that it is vague and hazy and conceals the thought processes of the court. Such an inexact test must depend upon the individual impressions of the judges and can give little guidance for future decisions. A more serious consequence is the fact that a decision in one case that two offences are 'substantially the same' may compel the same result in another case involving the same two offences where the circumstances may be such that a second prosecution should be permissible.... 28. In order that the prohibition is attracted the same act must constitute an offence under more than one Act. If there are two distinct and separate offences with different ingredients under two different enactments, a double punishment is not barred. In Leo Roy Frey v. Superintendent, District Jail, the question arose whether a crime and the offence of conspiracy to commit it are different offences. This Court said: The offence of conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equ....
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....proceeded against cannot be held punishable Under Section 5 of the Act although the ingredients of Section 5 are fully made out. 52. Learned Counsel appearing for the Appellant put heavy reliance on the decision of this Court in the case of Avtar Singh v. State of Punjab AIR 1965 SC 666, in which the Appellant was prosecuted and convicted for theft of electrical energy Under Section 39 of the Indian Electricity Act, 1910. The said conviction was challenged on the ground that as his prosecution was for an offence against the Act it was incompetent as it had not been instituted at the instance of any person mentioned in Section 50 of the Act. Section 39 of the Act provides that if a person dishonestly abstracts, consumes or uses any energy shall be deemed to have committed theft within the meaning of the Indian Penal Code. It is not in dispute that the Appellant had committed the theft mentioned in this section. However, Section 50 of the Act provides that no prosecution shall be instituted against any person for any offence against the Act except at the instance of the Government or an Electrical Inspector, or of a person aggrieved by the same. This Court allowing the appeal held....
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....ical energy, as mentioned in Section 39 of the Act, can be ascertained only by a person/Engineers having special qualification in that field. 54. Last but not least, in addition to these decisions, in the case of Institute of Chartered Accountants of India v. Vimal Kumar Surana and Anr. (2011) 1 SCC 534, this Court has very elaborately dealt with similar provision under the Chartered Accountants Act, 1949 (in short, 'C.A. Act'). In that case, the Respondent, who passed the Chartered Accountant examination but was not a member of the Appellant's Institute of Chartered Accounts, allegedly represented before the Income Tax Department and the authorities constituted under the Madhya Pradesh Trade Tax Act on the basis of power of attorney or as legal representative and submitted documents such as audit reports and certificates required to be issued by the Chartered Accountants by preparing forged seals and thereby impersonated himself as Chartered Accountant. He was accordingly prosecuted and charge was framed against him Under Sections 419, 468, 471 and 472, Indian Penal Code. The Respondent challenged the order by filing revision Under Section 397, Code of Criminal Proc....
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....contained in Section 195 Code of Criminal Procedure against taking of cognizance by the court except on a complaint in writing made by the court concerned before which the document is produced or given in a proceeding is not attracted in the case like the present one because the officers of the Income Tax Department and the authorities constituted under the Madhya Pradesh Trade Tax Act, 1995 before whom the Respondent is alleged to have acted on the basis of power of attorney or as legal representative or produced audit report do not fall within the ambit of the term "court" as defined in Section 195(3) Code of Criminal Procedure. Such officer/authorities were neither discharging the functions of a civil, revenue or criminal court nor could they be treated as tribunal constituted by or under the Central or State Act, which is declared to be a court for the purpose of Section 195. 55. There cannot be any two opinions that natural resources are the assets of the nation and its citizens. It is the obligation of all concerned, including the Central and the State Governments, to conserve and not waste such valuable resources. Article 48A of the Constitution requires that the State sh....
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.... of all contrary provisions. 61. In Liverpool Borough v. Turner Lord Campbell (1861), 30 L.J. Ch. 379, C.J. at page 380 said: No universal rule can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory, with an implied nullification for disobedience. It is the duty of courts to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed. 62. In Pratap Singh v. Shri Krishna Gupta AIR 1956 SC 140 at page 141, the Supreme Court while interpreting the mandatory and directory provisions of statute observed as under: We do not think that is right and we deprecate this tendency towards technicality; it is the substance that counts and must take precedence over mere form. Some rules are vital and go to the root of the matter; they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as whole and provided no prejudice ensues; and when the legislature does not itself state which Judges must determine the matter and exercising a ni....
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....on 22, in our considered opinion, the provision is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the river bed. 67. The Court shall take judicial notice of the fact that over the years rivers in India have been affected by the alarming rate of unrestricted sand mining which is damaging the ecosystem of the rivers and safety of bridges. It also weakens river beds, fish breeding and destroys the natural habitat of many organisms. If these illegal activities are not stopped by the State and the police authorities of the State, it will cause serious repercussions as mentioned hereinabove. It will not only change the river hydrology but also will deplete the ground water levels. 68. There cannot be any dispute with regard to restrictions imposed under the MMDR Act and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other sections of the Act, the officer empowered and authorized under the Act shall exercise all the powers including making a complaint before the jurisdictional magistrate. It is also no....